MO court: parents must be informed of right to counsel

10/06/2015, Litigation, Abuse/Neglect/Dependency - Accused Parents

Mo. Ann. Stat. § 211.211 states that the court has to appoint counsel if it finds, among other things, that the parent "desires the appointment of counsel … ” Meanwhile, Mo. Sup. Ct. R. 115.03 used to have the same language, but it was changed in 2010 to say the parent "requests appointment of counsel…”

 

In In the Interest of K.G., 2015 Mo. App. LEXIS 1026 (Mo. App. 2015), the Court of Appeals from the Western District Division One found error where “no inquiry was made regarding whether Father had or desired counsel. Likewise, there is no indication that the Commissioner sought to determine whether Father was indigent or whether a full and fair hearing required appointment of counsel for Father.” The court rejected the Juvenile Officer’s argument that the 2010 amendment to the court rule, which changed the language from “the parent … desires appointment of counsel” to “the parent … requests appointment of counsel”, obligated the parent to make a request before the court had any obligation to inquire. Instead, the court reasoned, the rule change was

 

meant to clarify that the custodian, upon being informed of the right to appointment of counsel, as required by the holding in In re N.H., 41 S.W.3d 607, 613 (Mo. App. W.D. 2001), has an affirmative duty at that point to notify the court, either verbally or in writing, that the custodian wants counsel appointed. It was meant to adjust the nature of a finding required for the appointment of counsel and not meant to eliminate the court's responsibility to inquire into whether the appointment of counsel was required.

 

The court also pointed to Mo. Sup. Ct. R. 124.06(b), which states, “[a]t . . . an adjudication hearing, the court shall first determine whether . . . (3) the parents, guardian or custodian of the juvenile are entitled to appointed counsel." Thus, the court held, “in order to determine if a parent is entitled to counsel, as Rule 124.06(b) requires at any adjudication hearing, the court must inquire of the custodian regarding indigence and the desire for counsel and must evaluate the necessity of counsel for a full and fair hearing.”